GIBSON v. LEVINE

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Supreme Court, Appellate Division, Second Department, New York.

Alicia M. GIBSON, respondent, v. Sean James LEVINE, et al., appellants.

Decided: May 15, 2012

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and LEONARD B. AUSTIN, JJ. Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for appellants. Edelman, Krasin & Jaye, PLLC, Carle Place, N.Y. (Jarad Lewis Siegel of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered September 7, 2011, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

 “[T]he operator of a motor vehicle has a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” (Maragos v. Sakurai, 92 A.D.3d 922, 923, 938 N.Y.S.2d 908;  see Balducci v. Velasquez, 92 A.D.3d 626, 628, 938 N.Y.S.2d 178).  “ ‘A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle’ ” (Ortiz v. Hub Truck Rental Corp., 82 A.D.3d 725, 726, 918 N.Y.S.2d 156, quoting Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659;  see Vehicle and Traffic Law § 1129[a];  Napolitano v. Galletta, 85 A.D.3d 881, 882, 925 N.Y.S.2d 163). “Accordingly, a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” (Ortiz v. Hub Truck Rental Corp., 82 A.D.3d at 726, 918 N.Y.S.2d 156;  see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726;  Klopchin v. Masri, 45 A.D.3d 737, 737, 846 N.Y.S.2d 311;  see also Abbott v. Picture Cars E., Inc., 78 A.D.3d 869, 869, 911 N.Y.S.2d 449;  DeLouise v. S.K.I. Wholesale Beer Corp., 75 A.D.3d 489, 490, 904 N.Y.S.2d 761;  Tutrani v. County of Suffolk, 64 A.D.3d 53, 59, 878 N.Y.S.2d 412).

 Here, in support of her motion, the plaintiff relied on, among other things, her deposition testimony and that of the defendant Sean James Levine.   The plaintiff testified that, while her vehicle was stopped at a stop sign, her vehicle was struck in the rear by a vehicle owned by the defendant Bellmore Radiator & Collision Co., Inc., and operated by Levine.   Contrary to the defendants' contentions, under the circumstances of this case, Levine's own deposition testimony established that his inattentiveness in not looking in the direction he was driving when he began to accelerate was the sole proximate cause of the accident (see Giangrasso v. Callahan, 87 A.D.3d 521, 522, 928 N.Y.S.2d 68).   Thus, the plaintiff established her prima facie entitlement to judgment as a matter of law.   In opposition, the defendants failed to raise a triable issue of fact.   Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.

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